On January 18, 2010, New Jersey became the 14th state to permit the use of medical marijuana. What implications does this have for employers, especially those companies that have policies against the use, sale or possession of drugs?
Does an employer have to accommodate the use of medical marijuana under the Americans with Disabilities Act? What about the applicable state disability discrimination law? Does it violate public policy to discipline or discharge an employee for doing what state law permits?
So far, the trend is running in favor of employers on these issues. Despite changes in some states, marijuana remains classified as a Schedule I drug under federal law, which makes its possession or use unlawful. The ADA does not require employers to accommodate illegal drug use. Thus, as long as marijuana remains a Schedule I drug, changes in state law will not trump the ADA.
At the state level, the Supreme Courts of California and Montana have ruled in recent years that employers have the right to terminate employees who use medical marijuana on the advice of their physicians to treat medical conditions. An appeals court in Washington reached a similar result last year. While it might be unlawful to discharge an employee because of the underlying condition, employers are not obligated to accommodate violations of federal law.
All of this is not to suggest that it is safe to do nothing. Many employers have policies on drugs in the workplace that have not been updated since 1988 when the federal Drug-Free Workplace Act first obligated federal contractors to have a policy prohibiting the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in the workplace and specifying what actions will be taken in the event of violations.
Typical policies at the time did not address the use of drugs during non-working hours and in non-working places. They also did not address the problem of employees who use legally prescribed substances and report to work potentially impaired because of the effects of their medication. Even in states that have not adopted medical marijuana laws, employers need to ensure that their policies on drugs are sufficiently nuanced to take these situations into account.
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